Elsperman v. Plump

443 N.E.2d 1206 (1983)

Frank D. ELSPERMAN and Connie E. Elsperman, Parents of DeWayne G. Elsperman, Deceased, Plaintiffs-Appellants,
v.
Norman A. PLUMP and the Loyal Order of the Moose-Lodge # 85, Defendants-Appellees.

No. 1-782 A 202.

Court of Appeals of Indiana, First District.

January 5, 1983.

Charles C. Griffith, Johnson, Carroll & Griffith, Evansville, for plaintiffs-appellants.

Thomas G. Krochta, Van Stone & Krochta, Evansville, for defendants-appellees.

ORDER

This court, having examined the appellants' brief herein, acting on its own motion, now finds that said brief is defective and not in compliance with Indiana Rules of Procedure, Appellate Rule 8.3(A)(5) and applicable decisions of this court interpreting said rule in the following particulars:

1. Appellants' brief section III "Statement of Facts," consists of a twenty-five (25) page summary of the testimony of each witness on direct, cross, redirect, and recross-examination, rather than a narrative statement of facts supported by references to the record.

2. Appellate Rule 8.3(A) provides:

"The brief of Appellant shall contain under appropriate headings and in the order here indicated:

... .

(5) A statement of the facts relevant to the issues presented for review, with appropriate references to the record... ."

3. This court in interpreting Appellate Rule 8.3(A)(5) has held that the statement of facts in an appellate brief should be a concise narrative summary of the facts in a light most favorable to the judgment and should not be a summary of each witness's testimony. Morris v. State, (1982) Ind. App., 433 N.E.2d 74; Moore v. State, (1981) Ind. App., 426 N.E.2d 86, dismissed for failure of appellant to file an amended brief, Ind. App., 428 N.E.2d 806.

4. This court believes the proper remedial action is to order appellants to rebrief in compliance with the rules and decisions of this court. See Moore, 426 N.E.2d at 90. That appellants should amend their brief only as to the statement of facts and file such amended brief within twenty-one (21) days of the receipt of this order. That appellees should have twenty-one (21) days after the filing of appellants' amended brief to amend their appellees' brief only as to the statement of facts.

Therefore, it is ordered that appellants file an amended brief, amended only as to the statement of facts, in order to comply with Appellate Rule 8.3(A)(5) and the decisions of this court, said amended brief to be filed within twenty-one (21) days after the date of this order. Failure to comply with this order will result in a dismissal of this appeal.

It is further ordered that appellees may file an amended brief only as to the statement of facts, if so desired, within twenty-one (21) days of the filing of appellants' amended brief. Failure to file an amended appellees' brief shall be deemed an acceptance of the statement of facts in appellants' amended brief.

It is further ordered that this order be published in the official reports of this court and distributed to the West Publishing Company for publication in the Northeastern Reporter.

ROBERTSON, P.J., and NEAL and RATLIFF, JJ., concur.